People v. Gervero G.R. No. 206725 July 11, 2018

 

People v. Gervero 

G.R. No. 206725 

July 11, 2018  

 

FACTS: 

On or about the 25th day of November, 1991, the accused, conspiring and confederating with one another, with deliberate intent and decided purpose to kill, armed with firearms, they were then provided, through treachery, evident premeditation and superior strength, did then and there, wilfully, unlawfully, and feloniously attack, assault, shoot and hit HERNANDO VILLEGAS, JOSE VILLEGAS and BENITO BASUG, JR. with said firearms inflicting upon said Hernando Villegas, Jose Villegas and Benito Basug, Jr. numerous gunshot wounds on different parts of their bodies which caused their deaths immediately thereafter. 

The RTC found the accused guilty of murder which the CA affirmed with modification, hence this appeal.  

 

ISSUES: 

I. WHETHER THE TRIAL COURT ERRED IN NOT APPRECIATING THE DEFENSE OF MISTAKE OF FACT; AND 

II. WHETHER THE TRIAL COURT ERRED IN RULING THAT THE AGGRAVATING CIRCUMSTANCE OF TREACHERY QUALIFIED THE KILLING TO MURDER. 

 

RULING: 

1. No. The SC held that the trial court did not err in not appreciating the defense of mistake of fact. The Court cited the case of People v. Oanis and Galanta where it held that mistake of fact applies only when the mistake is committed without fault of carelessness. It also cited the case of Yapyuco v. Sandiganbayan, where the Court has laid down the requisites for such defense to prosper which are (a) that the mistake be honest and reasonable; (b) that it be a matter of fact; and (c) that it negate the culpability required to commit the crime or the existence of the mental state which the statute prescribes with respect to an element of the offense.  

2. 
   

Here, the SC held that first, there was no reason for the accused not to recognize the victims because they were traversing an open area which was illuminated not only by moonlight, but also by a light bulb. In addition, the witnesses testified that the victims were conversing and laughing loudly. It must be borne in mind that it was not the first time that the accused had seen the victims as, in fact, accused Bañes and Castigador met Hernando just a few hours before the shooting. Moreover, they all reside in the same town and, certainly, the accused who were all members of the CAFGU would know the residents of that town so as to easily distinguish them from unknown intruders who might be alleged members of the NPA. Second, when Jose fell down, Hernando identified himself and shouted, "This is Hernando!" However, instead of verifying the identities of the victims, the accused continued to fire at them. One of them even shouted, "Birahi na!" ("Shoot now!"). Third, when the victims fell down, the accused approached their bodies. At that point, they could no longer claim that they didn't recognize the victims; and still not contented, they sprayed them with bullets such that Jose suffered 14 gunshot wounds,Hernando 16 gunshot wounds, and Benito 20 gunshot wounds. Fourth, contrary to their testimonies during trial to the effect that the victims were the first to fire their weapons, Brgy. Capt. Balinas testified that when he asked the accused whether the victims had fired at them, the accused answered him in the negative. Fifth, the accused would like the Court to believe that the victims knew the safe word "Amoy" which must be uttered in response to "Simoy" in order to easily determine whether they were members of the NPA. However, the victims could not have known the safe words as accused Gervero himself stated in his testimony that only he and his co-accused were present when their commanding officer briefed them about the safe words to be used in their operation. All these circumstances negate accused-appellants' claim of mistake of fact and point instead to a concerted action to eliminate the victims. 

The SC also held that there is no justifying circumstance of fulfillment of duty. It again cited the case of People v. Oanis where the two requisites in order that fulfillment of duty and exercise of a right may be considered as justifying circumstance, namely: (a) that the offender acts in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due performance of such duty or in the lawful exercise of such right or office. If one is absent, accused is entitled to the privileged mitigating circumstance of incomplete fulfillment of duty or lawful exercise of right or office. 

In this case, it could not even be said that the accused acted in the performance of their duty. Indeed, Gervero narrated that they conducted the operation on 25 November 1991, on the verbal instruction of Senior Inspector Baldevinos who later on testified in court to corroborate this claim. However, even assuming that they were indeed tasked to capture members of the NPA, their actions on that fateful night disprove their defense of fulfillment of duty as shown by the way they had viciously attacked their helpless victims. The evidence speaks in no uncertain terms that the accused, instead of fulfilling their sworn duty to protect the public in accordance with law, allowed their personal grudges and thirst for vengeance to prevail and killed Jose, Hernando, and Benito in cold blood. 

2. No. The trial court did not err in ruling that the aggravating circumstance of treachery qualified the killing to murder.  

The SC held that accused-appellants are guilty of murder qualified by treachery. Murder is defined and penalized under Article 248 of the Revised Penal Code (RPC), as amended, which provides: 

ART. 248. Murder. Any person who, not falling within the provisions of Article 246, shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua, to death if committed with any of the following attendant circumstances: 

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity; 

2. In consideration of a price, reward, or promise; 

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; 

4. On occasion of any calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity; 

5. With evident premeditation; 

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. 

Generally, the elements of murder are: 1) That a person was killed; 2) That the accused killed him; 3) That the killing was attended by any of the qualifying circumstances mentioned in Art. 248; and 4) That the killing is not parricide or infanticide. 

That Hernando, Jose, and Benito died and that the killing is neither parricide nor infanticide have already been established by the trial and appellate courts. Moreover, that accused-appellants killed the three victims remain undisputed considering that they had admitted the act of shooting the victims, but raised the defense of mistake of fact. However, as previously mentioned, neither mistake of fact nor fulfilment of duty is applicable to exculpate accused-appellants from criminal liability. Thus, what remains to be resolved is the appreciation of treachery as a qualifying circumstance. 

Paragraph 16, Article 14 of the RPC provides that "[t]here is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to. ensure its execution, without risk to himself arising from the defense which the offended party might make." Thus, in order for the qualifying circumstance of treachery to be appreciated, the following requisites must be shown: (1) the employment of means, method, or manner of execution would ensure the safety of the malefactor from the defensive or retaliatory acts of the victim, no opportunity being given to the latter to defend himself or to retaliate; and (2) the means, method, or manner of execution was deliberately or consciously adopted by the offender. "The essence of treachery is that the attack comes without a warning and in a swift, deliberate, and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape." 

The witnesses were all consistent in declaring that accused-appellants suddenly fired at the three unsuspecting victims who never had a chance to mount a defense. The victims, who were on their way to attend a wake and happily conversing with one another, were caught off guard when all of a sudden, they were met with multiple gunshots. In such a rapid motion, accused-appellants shot the victims, affording the latter no opportunity to defend themselves or fight back. Without any doubt, the manner of execution was deliberately adopted by the accused who were all armed with heavily powered firearms. They positioned themselves in what they termed as "ambush position," at a distance where their victims could not easily see them, thereby ensuring that they hit and terminate their targets. 

Hence, the SC dismissed the appeal.

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